287 Mass. 404 | Mass. | 1934
This is an action of contract or tort brought by the former owners of certain real estate against the former owner of a second mortgage thereon to recover damages for a wrongful foreclosure of said mortgage. On motion of the defendant a verdict was directed in his favor on the plaintiffs’ opening statement to the jury, and the plaintiffs excepted.
The substance of the case for the plaintiffs as outlined in the opening statement was as follows: The plaintiffs were the owners of a certain parcel of land in Boston with the buildings thereon which was subject to a second mortgage to the defendant in the statutory form. G. L. (Ter. Ed.) c. 183, §§ 18-21, Appendix (5). There was a breach of the condition of this mortgage by nonpayment of taxes for 1927 and the defendant took possession of the premises on March 30, 1928, and thereafter collected the rents. One or two days after taking possession, the defendant, for the purpose of foreclosure, advertised the mortgaged premises for sale at public auction on April 25, 1928, under the power of sale in the mortgage. The sale was adjourned until April 27, 1928, at which time the premises were sold. Negotiations were carried on between the parties prior to April 24, 1928, in which, sometime after April 20, 1928, an agreement was reached between them that the amount "due at that time to clear any breach of the mortgage” — being the amount of the unpaid taxes, interest paid by the defendant on the first mortgage, and principal and interest due to the defendant on the second mortgage, less rents collected by the defendant — was $2,507.27. It was agreed that if this amount was paid on April 24, 1928 ■— the day before the advertised day for the sale — "possession would be released, the foreclosure sale
The verdict was directed rightly.
It is “the well recognized practice of this court in appropriate cases of permitting a ruling to be made on the footing that on the opening statement of counsel to the jury no case is shown in law.” Farnham v. Lenox Motor Car Co. 229 Mass. 478, 482. There is nothing here to show that the opening statement made by counsel for the plaintiffs was not complete (see First National Bank of Bridgeport v. Groves, 269 Mass. 161, 165) and no contention is made that this was not an appropriate case for a ruling upon such opening statement. For the purposes of this case the statement is to be treated as being true. Murphy v. Boston & Maine Railroad, 216 Mass. 178.
The defendant does not contend that the tender was not a good tender, but, even so, the unaccepted tender, of itself, did not preclude a sale of the mortgaged premises under the power of sale in the mortgage, and the sale, therefore, was not wrongful because of such tender. Such a tender gave the plaintiffs no rights at law, but merely furnished them the foundation for an equitable remedy by suit for redemption under G. L. (Ter. Ed.) c. 244, § 21, of which they have not, on this record, availed themselves. Nor are the plaintiffs seeking here the equitable relief under G. L. (Ter. Ed.) c. 244, § 22, which may be had without tender. The provision in G. L. (Ter. Ed.) c. 244, § 21, that a “tender shall not prevent the foreclosure unless, within one year after the tender, the mortgagor or person claiming or holding under him commences suit for redemption,” and pays the amount of the tender into court, preserves in equity the right of redemption, at least where no bona fide purchaser is involved, but, unless a suit for redemption is brought before the sale, does not prevent a sale subject to the right of redemption so preserved. The sale by the defendant was within the terms of the power. The unaccepted tender did not, of itself, cure the previous breach nor at law extinguish or delay the right of the mortgagee to execute the power. Cranston v. Crane, 97 Mass. 459, 465-466. The effect of a tender in the case of a mortgage of real estate is unlike that in the case of a mortgage of
Nor was there any binding agreement between the parties which precluded a sale under the power or rendered wrongful the sale actually made. The negotiations between the parties took place after the failure of the mortgagor to pay taxes in accordance with the condition in the mortgage and did not have the effect of extending the time for performance of the condition. The breach had already occurred. In this respect the case differs from Depon v. Shawye, 263 Mass. 206, and similar cases relied on by the plaintiffs. The case also is unlike Rogers v. Barnes, 169 Mass. 179, where there was no breach of condition. And on the facts stated there was no binding agreement whereby the existing breach was waived. We treat, in favor of the plaintiffs, the statement that the parties “agreed” that possession would be released, the sale “called off” and the parties “put back to the same position in which they were” if the amount agreed upon was paid as equivalent to a statement that they “agreed” that the breach of condition would be waived if such payment was made. But this statement, though expressed in terms of agreement, “contains no implication that legal consequences are or are not produced.” Am. Law Inst. Restatement: Contracts, § 3, Comment (a). The defendant’s promise was a revocable offer by him to waive the breach upon payment by the plaintiffs, which was later changed with respect to the amount to be paid and finally changed, without any payment having been made, by adding conditions with which the plaintiffs would not comply. Compare American House Hotel Co. v. Hemenway, 237 Mass. 180, 182-183. This offer did not contemplate acceptance by the plaintiffs’ borrowing or otherwise raising money to make the payment (see Barnett v. Rosen, 235 Mass. 244, 247-248), or by a promise that such payment would be made, —■ and no such promise is shown — but contemplated, rather, acceptance by payment. There was, therefore, neither acceptance of the defendant’s offer nor consideration for his promise.
It is unnecessary to consider, so far as matter of waiver of the breach of condition is concerned, whether the direction of a verdict could also be sustained on the ground that the declaration contains no allegation of waiver. See Stevens v. Nichols, 155 Mass. 472, 474; Hey v. Prime, 197 Mass. 474, 475; Brasslavsky v. Boston Elevated Railway, 250 Mass. 403, 404.
Exceptions overruled.